EXHIBIT 4.8
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF ___ ___, 2004
BETWEEN
CENTERPOINT PROPERTIES TRUST
AND
SUNTRUST BANK, AS TRUSTEE
FIRST SUPPLEMENTAL INDENTURE, dated as of ___ __, 2004 by and
between CENTERPOINT PROPERTIES TRUST, a Maryland real estate investment trust
(the "Company"), having its principal offices at 0000 Xxxxx Xxxx, Xxx Xxxxx,
Xxxxxxxx 00000, and SUNTRUST BANK, a banking corporation organized and
existing under the laws of the State of Georgia, as trustee (the "Trustee"),
having its Corporate Trust Office at 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx
00000.
RECITALS
WHEREAS, the Company executed and delivered its Indenture (the
"Original Indenture"), dated as of March 12, 2004, to the Trustee to issue
from time to time for its lawful purposes debt securities evidencing its
unsecured indebtedness.
WHEREAS, the Original Indenture provides that by means of a
supplemental indenture, the Company may create one or more series of its debt
securities.
WHEREAS, the Company intends by this Supplemental Indenture to
create a series of debt securities, in an aggregate principal amount not to
exceed $500,000,000, entitled "CenterPoint Properties Trust Medium-Term
Notes, Series A" (the "Notes").
WHEREAS, the Board of Trustees of the Company has approved the
creation of the Notes.
WHEREAS, the Notes of the series created by this Supplemental
Indenture may be issued from time to time, and the terms thereof shall be
established as provided herein.
WHEREAS, the consent of Holders to the execution and delivery of
this Supplemental Indenture is not required, and all other actions required
to be taken under the Original Indenture with respect to this Supplemental
Indenture have been taken.
NOW, THEREFORE IT IS AGREED:
ARTICLE ONE
DEFINITIONS, CREATION, FORM AND TERMS AND CONDITIONS OF THE DEBT SECURITIES
SECTION 1.01 DEFINITIONS. Capitalized terms used in this
Supplemental Indenture and not otherwise defined shall have the meanings
ascribed to them in the Original Indenture. In addition, the following terms
shall have the following meanings to be equally applicable to both the
singular and the plural forms of the terms defined:
"Adjusted Total Assets" of a Person as of any date means the total
of all assets of such Person which would be shown as assets on a balance
sheet of such Person as of such time prepared in accordance with GAAP plus
accumulated depreciation.
"Annual Service Charge" as of any date means the aggregate amount of
any interest expensed by the Company and its Subsidiaries for the four
consecutive fiscal quarters most recently ended, as determined in accordance
with GAAP.
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"Consolidated Income Available for Debt Service" as of any date
means Consolidated Net Income (as defined below) of the Company and its
Subsidiaries plus amounts that have been deducted in the computation thereof
for: (a) interest on Debt of the Company and its Subsidiaries: (b) provision
for taxes of the Company and its Subsidiaries based on income; (c)
amortization of debt discount; (d) depreciation and amortization; (e) the
effect of any noncash charge resulting from a change in accounting principles
in determining Consolidated Net Income; and (f) amortization of deferred
charges, for the four consecutive fiscal quarters most recently ended, all as
determined in accordance with GAAP, and without taking into account any
provision for gains and losses on properties.
"Consolidated Net Income" for any period means the amount of net
income (or loss) of the Company and its Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP.
"Indenture" means the Original Indenture as supplemented by this
First Supplemental Indenture.
"Intercompany Debt" means Debt to which the only parties are the
Company and any Subsidiary and, in the case of Debt owed by the Company to
any Subsidiary, such Debt is subordinate in right of payment to the Holders
of the Notes.
"Notes" means the Company's Medium-Term Notes, Series A, issued from
time to time under the Indenture.
"Undepreciated Real Estate Assets" as of any date means the amount
(original cost plus capital improvements) of real estate assets of the
Company and its Subsidiaries on such date, before depreciation and
amortization, determined on a consolidated basis in accordance with GAAP.
"Unencumbered Total Asset Value" as of any date means the sum of:
(i) the amount of each asset comprising Undepreciated Real Estate Assets not
subject to an encumbrance; and (ii) the amount of all other assets of the
Company and its Subsidiaries on a consolidated basis not subject to an
encumbrance, determined in accordance with GAAP (but excluding accounts
receivable and intangibles).
SECTION 1.02 CREATION OF THE DEBT SECURITIES. In accordance with
Section 301 of the Original Indenture, the Company hereby creates the Notes
as separate series of its debt securities issued pursuant to the Indenture.
The Notes shall be issued from time to time in an aggregate principal amount
not to exceed $500,000,000, or its equivalent in foreign currencies, currency
units or composite currencies. The specific terms of each tranche of the
series of Notes created by this Supplemental Indenture that may be issued
from time to time shall be determined as set forth in Sections 301 and 303 of
the Original Indenture.
SECTION 1.03 APPLICABILITY OF DEFEASANCE OR COVENANT DEFEASANCE.
The provisions of Article 14 of the Original Indenture shall apply to the
Notes.
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ARTICLE TWO
ADDITIONAL COVENANTS
The Notes shall be governed by all the covenants contained in the
Original Indenture, as supplemented by this First Supplemental Indenture, and
in particular, this First Supplemental Indenture amends Section 1004 of the
Original Indenture to read as follows:
"SECTION 1004. Limitations on Incurrence of Debt.
(a) The Company will not, and will not permit any
Subsidiary to, incur any Debt, other than Intercompany Debt, if, immediately
after giving effect to the incurrence of such Debt and the application of the
proceeds thereof, the aggregate principal amount of all outstanding Debt of
the Company and its Subsidiaries on a consolidated basis determined in
accordance with GAAP would be greater than 60% of the sum of (i) the
Company's Adjusted Total Assets as of the end of the most recent fiscal
quarter prior to the incurrence of such additional Debt, plus (ii) the
increase in the Company's Adjusted Total Assets since the end of such quarter
(including any increase resulting from the incurrence of additional Debt).
(b) The Company will not, and will not permit any
Subsidiary to, incur any Debt if the ratio of Consolidated Income Available
for Debt Service to the Annual Service Charge on the date on which such
additional Debt is to be incurred would have been less than 1.5 to 1, on a
pro forma basis, after giving effect to the incurrence of such Debt and to
the application of the proceeds thereof.
(c) The Company will not, and will not permit any
Subsidiary to, incur any Debt secured by any mortgage, lien, charge, pledge,
encumbrance or security interest of any kind upon any of the properties of
the Company or any Subsidiary ("Secured Debt"), whether owned at the date
hereof or hereafter acquired, if, immediately after giving effect to the
incurrence of such Secured Debt and the application of the proceeds thereof,
the aggregate principal amount of all outstanding Secured Debt of the Company
and its Subsidiaries on a consolidated basis would be greater than 40% of the
sum of (i) the Company's Adjusted Total Assets as of the end of the most
recent fiscal quarter prior to the incurrence of such additional Debt, plus
(ii) the increase in Adjusted Total Assets since the end of such quarter
(including any increase resulting from the incurrence of additional Debt).
(d) The Company will at all times maintain an Unencumbered
Total Asset Value in an amount not less than 150% of the aggregate principal
amount of all outstanding unsecured Debt of the Company and its Subsidiaries
on a consolidated basis.
For purposes of the foregoing provisions regarding the limitation on
the incurrence of Debt, (i) Debt shall be deemed to be "incurred" by the
Company or a Subsidiary whenever the Company or such Subsidiary shall create,
assume, guarantee or otherwise become liable in respect thereof, (ii)
outstanding Debt of any Person that becomes a Subsidiary shall be deemed to
be "incurred" at the time such Person becomes a Subsidiary, and (iii) any
Debt that is extended, renewed or refunded shall be deemed to have been
"incurred" at the time of any such extension, renewal or refunding.
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ARTICLE THREE
TRUSTEE
SECTION 3.01 TRUSTEE. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or the due execution thereof by the Company. The
recitals of fact contained herein shall be taken as the statements solely of
the Company, and the Trustee assumes no responsibility for the correctness
thereof.
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
SECTION 4.01 RATIFICATION OF ORIGINAL INDENTURE. This Supplemental
Indenture is executed and shall be construed as an indenture supplemental to
the Original Indenture, and as supplemented and modified hereby, the Original
Indenture is in all respects ratified and confirmed, and the Original
Indenture and this Supplemental Indenture shall be read, taken and construed
as one and the same instrument.
SECTION 4.02 EFFECTS OF HEADINGS. The Article and Section
headings herein are for convenience only and shall not affect the
construction hereof.
SECTION 4.03 SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Supplemental Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 4.04 SEPARABILITY CLAUSE. In case any one or more of the
provisions contained in this Supplemental Indenture shall for any reason be
held to be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
SECTION 4.05 GOVERNING LAW. This Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New
York. This Supplemental Indenture is subject to the provisions of the Trust
Indenture Act that are required to be part of this Supplemental Indenture and
shall, to the extent applicable, be governed by such provisions.
SECTION 4.06 COUNTERPARTS. This Supplemental Indenture may be
executed in any number of counterparts, and each of such counterparts shall
for all purposes be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused the
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the date first above
written.
CENTERPOINT PROPERTIES TRUST
By: _______________________________
Name: Xxxxxxx X. Xxxxxx
Title: President
Attest:
By: ___________________
Name: Xxxxxx X. Xxxxxx
Title: Secretary
SUNTRUST BANK,
as Trustee
By: _______________________________
Name:
Title
Attest:
By: ___________________
Name:
Title:
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STATE OF ILLINOIS )
) SS:
COUNTY OF XXXX )
On the __ day of ___, 2004, before me personally came Xxxxxxx X.
Xxxxxx and Xxxxxx X. Xxxxxx, to me known, who being by me duly sworn, did
depose and say that they are the President and Secretary, respectively, of
CENTERPOINT PROPERTIES TRUST, one of the parties described in and which
executed the foregoing instrument, and that they signed their name,
respectively, thereto by authority of said corporation.
[Notarial Seal]
-----------------------
Notary Public
COMMISSION EXPIRES
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COMMONWEALTH OF VIRGINIA )
) SS:
CITY OF RICHMOND )
On the __ day of ___, 2004, before me personally came _____________
and _____________, to me known, who being by me duly sworn, did depose and
say that they are the _____________ and ______________, respectively, of
SUNTRUST BANK, one of the parties described in and which executed the
foregoing instrument, and that they signed their name, respectively, thereto
by authority of said entity.
[Notarial Seal]
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Notary Public
COMMISSION EXPIRES
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